Prisoners' rights in Germany and England : a comparative examination

This thesis is a comparative examination of prisoners' rights in England and Germany. The thesis has three dimensions: first, it is a description of the legal status of the prisoner in Germany and England; second, it is an examination of the social, political and cultural dynamics which have shaped prisoners' rights in each jurisdiction; and third, it is in itself an exercise which seeks to address the problems of comparative law which are identified in the introduction. England and Germany have been chosen as comparators as their respective approaches to prisoners' rights present illuminating contrasts. In England, despite significant judicial activity in the development of a prisoners' rights jurisprudence, prisoners' rights protection remains partial and equivocal. Many aspects of prison life are left within the realm of executive discretion, and the present Government, much like its predecessors, is unlikely to entrench a bill of prisoners' rights. Proponents of prison reform in England argue that the system of prisoners' rights protection is inadequate, not only in terms of the rights which prisoners can claim, but in terms of the possibilities of enforcement and the independence of enforcement bodies. This equivocal commitment to rights in England is heightened when juxtaposed against Germany's highly articulated rights culture and ambitious system of prisoners' rights protection under the Prison Act 1976. The German Prison Act, which is underpinned by a considerable constitutional jurisprudence on prisoners' rights, sets out foundational principles of prison administration, affords prisoners positive rights, defines the limitations of prisoners' constitutional rights and provides prisoners recourse to a Prison Court. Moreover, the rights and principles under the German Prison Act have been developed and refined in a substantial body of prison law jurisprudence over the last thirty years. Chapters one to three of the thesis make available to an English audience an in-depth account of the conception and protection of prisoners' rights in Germany and the broader context in which this has taken place. Chapters four and five of the thesis examine the method and manner of conceiving of the prisoner's legal status in England in the light of the German conception and explore the deeper political and cultural reasons for the divergence between England and Germany.